David Anderson Lord Anderson KBE QC Brick Court
David Anderson Lord Anderson KBE QC Brick Court Chambers @bricksilk ALBA, 2 March 2020 The status of EU law in the UK after Brexit: introduction
EU(W)A and EU(WA)A
A Tale of Two WABs OCTOBER 2019 � Ho. C power over: extending transition starting negotiations negotiating mandate approval of FRT � Workers’ rights DECEMBER 2019 � s 33: No extension � S 37: Child asylum � s 26: Directing courts � s 29: Ho. L EU Cttee
TRANSITION PERIOD (2020) Withdrawal Agreement (WA) �Union law applies (Treaties, CFR, GPL, EU acts) to the UK (Art 2) �EU principles of interpretation apply, inc. references to CJEU (Arts 127, 86) �EU agencies retain supervisory and enforcement powers (Art 131) �Direct effect and supremacy apply (Art 4)
TRANSITION PERIOD (2020) EU(W)A 2018 as amended �ECA 1972 repealed on exit day (31/01/20: s 1) but “saved” for transition period: (s 1 A) �EU law as at exit day applies in UK (s 1 A(3)) �“EU-derived domestic legislation” as at exit day remains in force, with glosses (s 1 B)
AFTER “IPC DAY” (2021 -) Retained EU law (REUL) �EU-derived domestic legislation (EU(W)A s 2) �Direct EU law (s 3): Regulations, Decisions &c applicable to the UK (but not CFR) �Directly effective rights &c (s 4) under ECA: Treaties, recognised directives and GPLs �No right of action for failure to comply with GPL, or for Francovich damages (Sch 1 ps 3, 4)
AFTER “IPC DAY” (2021 -) Interpretation of REUL �REUL has supremacy over pre-IPC domestic law, but not post-IPC law (s 5) �Retained case law / GPLs: binding (s 6(3)) �Post-IPC CJEU rulings: may have regard (s 6(2)) �No more references to CJEU (s 6(1)) �Supreme Court is not bound by REUL (s 6(4)): may depart as if from its own decisions
AFTER “IPC DAY” (2021 -) Implementation of WA �Rights arising under WA have direct effect and supremacy under EU(W)A s 7 A: Citizens’ rights (EU(WA)A 2020 Part 3) Financial provisions (EU(WA)A s 20) Northern Ireland Protocol (EU(W)(A) s 8 C) �Similar conduit under EU(W)A s 7 B for rights arising under EEA EFTA separation agreement Swiss citizens’ rights agreement
DELEGATED POWERS �To deal with “deficiencies arising from withdrawal”: EU(W)A s 8 as amended �In connection with the IP (s 8 A), separation provisions (s 8 B), NI Protocol (s 8 C: “Henry VIII on steroids”, though limited by WA) � To tell courts the extent to which they are not bound by REUL (s 6(5)A-D: pre-IPC)
David Anderson Lord Anderson KBE QC Brick Court Chambers @bricksilk ALBA, 2 March 2020 The status of EU law in the UK after Brexit: introduction
- Slides: 10